Aladdin Co. of America v. Gregory

THE COURT.

An action to recover the sum of #1625 alleged to have been received by the defendant for the use and benefit of the plaintiff. The plaintiff claimed that the above amount was deposited with the defendant as security for the payment of the rent of certain real property in San Francisco; that a written lease thereof containing the terms agreed upon by the parties and pursuant to which the deposit was made, was signed by them, but that the defendant refused possession unless the plaintiff would agree to the execution of another lease in a different form; that the latter declined to do so and demanded the return of the deposit. The defendant maintained that the original lease was executed by both parties and that the plaintiff, without cause, abandoned the lease and the leased premises. A jury returned a verdict for the plaintiff, and from the judgment entered thereon the defendant, whose motion for a new trial was denied, has appealed. As grounds therefor it is contended that the verdict is unsupported, and that the court erred in excluding certain evidence offered by the defendant, and in its instructions to the jury.

[274]

The evidence shows that George F. Shade of the firm of Allen & Co., who appear to have been real estate agents acting for the plaintiff, entered into negotiations with Frank J. Golden, the agent of the defendant, for a lease of the premises. These negotiations resulted in a lease being drawn by Shade which was signed by both parties. The term of the lease was five years, commencing on December 1, 1925, at a monthly rental of $325, payable in advance, and as security for performance by the plaintiff the latter agreed to deposit with the defendant the sum of $1625. According to Shade the instrument was not delivered, but was held by Golden pending the payment of the deposit. Golden was absent from San Francisco for about two weeks and upon his return a check for the amount of the deposit was tendered-to him by an agent for the plaintiff. Golden then stated that he was not satisfied with the lease which had been signed, and proposed another in the form prepared by him, further stating that the check which was left with him would be held until the completion of the transaction. The new lease was submitted to the plaintiff corporation, which refused to execute the same, and the check was thereafter cashed by Golden and the amount paid to the defendant. Golden testified that when the plaintiff refused to accept the new lease prepared by him he stated that they would operate under the lease already signed. It was testified by Shade, however, that the plaintiff was willing to proceed under the first lease, and so notified Golden, who refused to give possession of the property unless the new lease should be executed by the plaintiff. Other witnesses testified that for the purpose of making measurements for floor plans therein the key to the premises was obtained by plaintiff’s employees at the time the deposit was made, and that subsequently the key was returned to Golden.